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The When and How of Leak Being Probed

Timing of Disclosure of CIA Employee's Name a Factor in Deciding if Law Was Broken

By Susan Schmidt

Washington Post Staff Writer
Friday, November 26, 2004; Page A06

A federal prosecutor investigating whether administration officials illegally leaked the name of an undercover CIA operative has directed considerable effort at learning how widely the operative's identity was disseminated to reporters before it was published last year by columnist Robert D. Novak, according to people with knowledge of the case.

Special prosecutor Patrick J. Fitzgerald is trying to pinpoint precisely when and from whom several journalists learned that Joseph C. Wilson IV, an outspoken critic of the administration, was sent on an Iraq-related intelligence mission after a recommendation by his wife, Valerie Plame, a covert CIA employee. Plame's name first appeared in a July 14, 2003, column by Novak.

Robert D. Novak's July 14, 2003, column may have been seen by the White House before it ran.
(CNN)

The timing could be a critical element in assessing whether classified information was illegally disclosed. If White House aides directed reporters to information that had already been published by Novak, they may not have disclosed classified information.

Fitzgerald is continuing to ask questions that suggest he is still trying to assess the accuracy of some of the more serious allegations about administration leaks to reporters other than Novak, according to people involved in the case. Prosecutors have questioned numerous witnesses, some of them repeatedly, to learn whether two senior White House aides actively peddled Plame's identity to more than half a dozen reporters before Novak revealed it in print -- an allegation made by an anonymous administration official in a Sept. 28, 2003, Washington Post article.

Plame's name was leaked to reporters "purely and simply for revenge," the official alleged in the report.

"Prosecutors are interested in the sourcing of that story and whether it's accurate. If it is not accurate, they would like to know that and move along," said an attorney for a witness in the case.

This lawyer and two others involved in the case said Fitzgerald has been trying to sort out whether White House officials mounted a campaign to leak Plame's identity, or whether they were merely spinning information that Novak's column had already put into the public domain. Prosecutors are also investigating who originally gave Novak the information.

As part of his efforts, Fitzgerald has been battling reporters in court, demanding that they disclose conversations with confidential sources

The Justice Department launched a leak investigation at the CIA's request in September 2003 and, after a preliminary inquiry, turned it over to a politically independent special counsel late last year. Justice Department officials said it will be up to Fitzgerald to decide whether to issue a report on his findings if he does not seek criminal charges.

To constitute a violation of the Intelligence Identities Protection Act, a disclosure by a government official must have been deliberate, the person doing it must have known that the CIA officer was a covert agent, and he or she must have known that "the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States."

In the more than 13 months since the investigation began, prosecutors and FBI agents have interviewed many members of the White House staff, some repeatedly, including some of those on the vice president's staff and in the communications office.

"They seem to continue to be focused on which White House officials talked to members of the press, and whether that was pre- or post-Novak. That's where they are struggling," the witness's lawyer said.

"I think that they are frustrated," said another person who has talked to investigators. "What activity occurred pre-Novak and what occurred post-Novak . . . is a distinction people working the story wouldn't have made at the time," this source said.

Most witnesses have declined to comment on the investigation. Some lawyers representing witnesses have been told that their discussions with investigators should be kept confidential, and as a result there has been little of the usual communication among lawyers about where prosecutors may be headed. One witness's lawyer said that in addition to the admonition from prosecutors, attorneys have avoided communicating with one another so as not to be accused of obstruction.